I accepted a ride home from a party with a friend of a friend who was clearly drunk. We got into an accident on the way home and I've injured my back. The medical expenses have cost a lot. Can I raise a negligence claim against the driver?
Lawyer Answers (1): Answers from lawyers are general preliminary responses. They are not formal legal advice and cannot taken account of all your circumstances. They do not create a lawyer–client relationship.
Answer by Neha Sharma, Hillsdale 2036 NSW
- Whether you can claim negligence against the driver will depend on the facts of your individual case. You should always seek legal advice specific to your situation before taking any legal action.
- You may raise a claim of negligence against the driver but be aware that the driver can raise defences to either mitigate their liability or rebut your claim altogether. Generally if you know that the driver is drunk and still accept a ride with them you may be found to have acted in a way that contributed to your suffering the damage. You may also have acted negligently and failed to exercise the degree of care for your own safety that you should have in the particular circumstances.
- Some states and territories in Australia have laws that state a plaintiff’s contributory negligence may lead to a reduction of damages claimed rather than dismissal of claim. Others have special statutory provisions that specifically deal with drink driver and passenger claims in tort.
- A defence of voluntary assumption of risk is rarely accepted by courts because it is believed that the plaintiff did not fully appreciate the risk that the drunken driver could not drive properly or that the plaintiff was not sober enough to make a sound decision.
- The courts may be more willing to accept a defence of contributory negligence because a court considers a passenger ought to have known the risk associated with a drunken driver.
- You are strongly advised to seek out a lawyer who can help you with the specifics of your case.